All lawyers make mistakes. Often, they are small and can be fixed. But that is not always the case.  And sometimes it is those small mistakes that carry the harshest consequences.

Nowhere are harsh consequences for small mistakes more common than in the rules governing error preservation for appeal. A moment’s hesitation, a poorly phrased objection, one too many questions – that is all it takes to waive or forfeit an issue. The consequences can be devastating. Within seconds, inattentive counsel can lose an appeal before one ever gets filed.

Avoiding this result requires vigilance and preparation. While the rules for preserving error on appeal are extensive and – in some areas – complex, trial counsel must have a firm grasp of the basics. That is what this article aims to provide – a trial lawyer’s guide for not only avoiding some of the most common preservation mistakes at trial but also making the best record possible.

THREE CARDINAL RULES FOR PRESERVING ERROR

While the rules for preserving error on appeal are nuanced and can vary by issue, broadly speaking, there are three cardinal rules. You need 1) a timely and specific objection or motion, 2) a ruling from the court and 3) a record establishing both.

Making a Timely and Specific Objection or Motion

Preserving error starts with a timely objection, request or motion. Error preservation rules are grounded on principles of procedural fairness and judicial economy, the idea being “the best place to correct error in the first instance is in the trial court where ... the principal focus of the litigation should be.”[1] For that to occur, parties must raise issues in a timely and specific manner, giving the court “the opportunity to take corrective action and to avoid unnecessary error.”[2]

Timeliness. The timeliness of a motion or objection depends on the issue. A summary of the applicable timing requirements for some of the most common objections and motions at trial is provided:

 

TIMING REQUIREMENTS FOR COMMON TRIAL OBJECTIONS AND MOTIONS
Issue	Deadline(s)
Jury Selection	Before the jury is sworn[3]
Evidentiary Rulings	At the earliest possible opportunity after the objection becomes apparent[4]
Sufficiency of the Evidence
State – Civil	At the close of the plaintiff’s case, and if a defense case is presented, at the close of all the evidence[5]
State – Criminal	At the close of the state’s case, and if a defense case is presented, at the close of all the evidence[6]
Federal – Civil	Before the case is submitted to the jury and renewed after the jury returns its verdict[7]
Federal – Criminal	At the close of the government’s case, and if a defense case is presented, at the close of all the evidence.[8] The defendant may also “move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or the court discharges the jury, whichever is later.”[9]
Jury Instructions	Before the jury is instructed[10]
Verdict Form	Before submission to the jury[11]
Form of the Verdict	Before the jury is discharged[12]
Trial Misconduct	Promptly, at least before the jury retires[13]

 

Depending on the circumstances, timeliness may require repetition. While it is generally unnecessary to repeat or renew an objection made at trial after it has been conclusively overruled,[14] if the evidence or circumstances have changed, a renewed objection may be required.[15] That the court overrules an objection to a particular piece of evidence does not necessarily preserve an objection to all future evidence or testimony offered on the same general topic.[16] When in doubt, counsel should object and ask for a continuing objection.[17]

When inadmissible evidence is introduced before an objection can be interposed, counsel should object and make a motion to strike. Although dated and subject to criticism, there are cases in Oklahoma holding that once a witness has answered a question, a delayed objection alone will not preserve the issue for appeal without a motion to strike.[18]

Specificity. A proper objection must also be specific. While the degree of specificity required will often vary depending on the issue and the context in which it is raised, the basic requirement remains the same: An objection must be “specific enough to allow the trial court to address the matter,”[19] giving the court “the opportunity to correct its action in the first instance.”[20] While it is clear that a general objection that evidence is “incompetent,” “improper” or “inadmissible” is not enough,[21] the degree of specificity required is not reducible to precise a definition or quantification. It all depends on context. When in doubt, counsel should generally err on the side of specificity.[22]

The specificity requirement requires parties to state all grounds on which an asserted objection is based. If a party believes a piece of evidence is inadmissible on three grounds but only states one of those grounds in its objection, it has forfeited the other two.[23]

While they generally cannot independently preserve an issue or objection for appeal, motions in limine and trial briefs can play an important role in building specificity for objections anticipated at trial. It is no secret that the “psychological pressure of low-tone bench conferences” often leads attorneys to make objections in a “truncated” manner.[24] If an attorney cannot state the specific grounds for an objection without a lengthy explanation or argument, it can be helpful if the grounds for the objection have already been stated elsewhere in the record, which counsel can then refer back to in stating or renewing the objection at trial.[25]

Obtaining a Ruling

The second cardinal rule for preserving error is to obtain a ruling. While it may seem small, this requirement is nonetheless critical. Appellate courts review rulings, not unresolved objections.[26] Thus, after making a proper objection, it is counsel’s “obligation to obtain a ruling ... or such objection is waived on appeal.”[27]

To preserve error, a ruling must be “definitive.”[28] A court’s nonfinal statement about the way it is inclined to rule is not enough.[29] Nor is a ruling that is vague or conditional.[30] If the court reserves its ruling on an objection, it is the objecting party’s obligation to press for a positive ruling, even if that ruling is simply a refusal to rule.[31]

Creating a Record

When it comes to preserving error for appeal, nothing an attorney does at trial matters unless it is documented in the record. Counsel can make the best objections and obtain the clearest rulings from the court, but if it is not in the record, it is treated as though it never happened.[32] This is important because decisions “reviewed on appeal [are] presumed correct unless the contrary is shown by the record.”[33] It is counsel’s obligation to create a record adequate for appellate review, ensuring that is clear and complete, both in general and in particular with any legal issues that overtly come to a head at trial.[34]

A complete record captures all relevant objections, motions, rulings, evidence, nonadmitted exhibits and other proceedings relevant to an issue on appeal. Counsel must ensure that all relevant proceedings are recorded or, if a court reporter is unavailable, otherwise documented in the record through a journal entry or narrative statement of the evidence or proceedings.[35]

Creating a complete record requires a methodical approach for handling exhibits. All counsel should have a system in place to track in real time which exhibits have been offered and admitted into evidence. But it’s just as important to track how exhibits and materials not admitted into evidence are preserved for the record. While the clerk usually retains copies of nonadmitted exhibits for the record, counsel should confirm that’s the case. The same should be considered for impeachment-only exhibits. Demonstrative evidence, including a witness’s markings on demonstrative evidence, should be preserved, oftentimes with a photograph if the exhibit is of a size not easily maintained with the paper record. For the sake of clarity, all the above should be captured, labeled, referenced accordingly and submitted for inclusion – as an appellate or court exhibit – in the official record. Consistently practicing good trial record hygiene will help avoid logistical preservation issues, whether the issues were obvious or nonobvious as they sprang up during trial.

In addition to being complete, the record should also be clear. A clear record is one that successfully captures the experience as if the appellate court were physically present for the trial. Considering that the court reporter’s transcription (and not an audiovisual recording) is how the appellate court reviews what happened below, it behooves counsel not only to speak clearly but to also meta-narrate what might otherwise escape transcription. Clarifying a witness’s “uh-huh” as either a “yes” or “no” response can have a big impact on appeal. Being precise when referring to “Defendant’s Exhibit 3” as opposed to “this exhibit” avoids future confusion. Describing nonverbal actions that occur at trial – such as a witness’s gesture about the size of an object or their behavior in winking, laughing, crying, making facial expressions or looking to opposing counsel for approval – ensures all relevant underlying circumstances at trial are preserved in the record.

ADDITIONAL ISSUE-SPECIFIC PRESERVATION REQUIREMENTS AND BEST PRACTICES

In addition to the three cardinal rules set forth above, there are a variety of additional issue-specific preservation rules that often come up at trial. From voir dire through final jury instructions, counsel should be familiar with and prepared for how to appropriately object and preserve their objections for appeal in these commonly seen areas as well.

Voir Dire

Jury selection has its own set of appellate issues. One nuanced aspect to be aware of relates to preserving contested challenges for cause. “In order to properly preserve an objection to a denial of a challenge for cause,” a party must show it “was forced over objection to keep an unacceptable juror.”[36] To do so, counsel should 1) use a peremptory challenge to excuse the challenged-for-cause juror,[37] 2) exhaust all peremptory challenges,[38] 3) request additional peremptory challenges[39] and 4) after the conclusion of the challenges but before the jury is empaneled, make a record of who else counsel would have excused and why.[40]

Motions in Limine

With limited exceptions, rulings on motions in limine generally preserve nothing. In Oklahoma, rulings on motions in limine are “advisory until finally determined at trial.”[41] “Consequently, liminal rulings are not appealable, and only evidentiary rulings during trial remain subject to review.”[42] At the federal level, the 10th Circuit has carved out a limited exception to this rule where the trial court makes “a definitive, well-thought-out pretrial ruling on a subject that will not be affected by the evidence that comes in at trial.”[43] But Oklahoma state courts have not followed this trend, sticking with the traditional rule requiring a party to make a renewed objection or offer of proof at trial.[44] Whether in state or federal court, “[p]rudent counsel [should continue to] renew objections at trial,” given “the inherent risk that the appellate court might find that the objection was of the type that must be renewed and that the party, by relying on the motion in limine, has waived the objection.”[45]

Offers of Proof

If a ruling excludes evidence, the proponent of the evidence must make an offer of proof.[46] An offer of proof is the procedure whereby excluded evidence is placed in the record.[47] Its purpose is not only to enable “the trial judge to make informed decisions based on the substance of the evidence,” but also to create “a clear record that an appellate court can review to ‘determine whether [excluding the evidence] was reversible error.’”[48]

But “merely telling the court the content of proposed testimony is not an offer of proof.”[49] Instead, “the proponent must, first, describe the evidence and what it tends to show and, second, identify the grounds for admitting the evidence.”[50] In doing so, specificity is key: As courts have acknowledged, “[s]pecificity and detail are the hallmarks of a good offer of proof” and “conclusory terms, especially when presented in a confused manner, mark poor ones.”[51]

When it comes to witness testimony, there are four ways to make an offer of proof:

• Examine the witness on the record outside the presence of the jury,
• Have counsel dictate the substance of the witness’s testimony into the record,
• Have counsel put a written statement of the witness’s testimony into the record or
• Have the witness submit a signed statement of their testimony into the record.[52]

Of these methods, the 10th Circuit has described the first as the “most desirable” and the second as the “least favored,” observing that narrative summaries are more likely to lack the specificity and detail required for a proper offer of proof.[53] While counsel can and generally should seek to make offers of proof via the first method, particularly when the excluded testimony is important or complex, the rule vests “the trial judge with discretion in determining the form of the offer.”[54]

But that discretion is not unlimited. “[I]t is an error for the trial court to permit [a party to make] a seasonable offer of proof.”[55] When a court does so or otherwise restricts a party’s ability to make a proper offer of proof, counsel should object and prepare and file a written offer of proof.

Opening the Door

While counsel must regularly balance the objective of persuading the factfinder at trial with preserving potential legal issues for appeal, special care should be taken to not inadvertently “open the door” for legally problematic evidence. Under the rule, “[t]he party who first introduces improper evidence cannot object to the admission of evidence from the adverse party relating to the same matter.”[56]

This issue can come up in any number of ways at trial. But one area where it frequently occurs is when counsel tries to “take the sting out” of the other side’s evidence. Here’s the typical scenario: The other side has some prejudicial, arguably inadmissible evidence against your client. You move in limine to exclude it. The court denies your motion. As a result, you want to “take the sting out” of the evidence by contextualizing it in opening statements or on direct examination before the opposing counsel can parade it around before the jury.

It is at this point that counsel should stop and evaluate whether “taking the sting out” is worth potentially waiving the objection to the evidence’s admission. As a pure matter of timing, the general rule is that the first party to introduce evidence waives any objection to an opponent’s later admission of the same or similar evidence – even when initially introduced to preemptively address such evidence.[57] This remains true whether the door is opened on direct examination,[58] cross-examination[59] or even during the opening statements despite the court’s admonitions to the jury that the statements of counsel are not evidence.[60] Should counsel wish to preserve the issue for appeal, the best practice is to 1) not be the first to raise challenged evidence regardless of the stage of the case, 2) object when the other side first raises it and 3) if the court allows the evidence, keep your discussion of challenged evidence “confined to matters” first raised by the other side (meaning, don’t expand the scope).[61]

Trial Misconduct

As with any other issue, counsel must contemporaneously object to trial misconduct to preserve the matter for appeal.[62] This includes not only misconduct by opposing counsel but anyone else in the courtroom whose conduct may impact the fairness of the proceeding – jurors, attendees, witnesses, court staff and, yes, even the judge.[63]

When objecting to trial misconduct, counsel should expressly request any desired relief, typically a curative instruction or a mistrial, and be prepared to further object should the court’s curative response be inadequate.[64] Absent such steps, any dispute over the adequacy of the court’s curative measures will be deemed forfeited and reviewed for plain error[65] if not entirely waived.[66]

Jury Instructions

Erroneous jury instructions are one of the most common areas where district courts get reversed. But to have such impact, counsel must make a clear record. The process starts with preparing a set of proposed jury instructions. While it is the “court’s duty to accurately state the law of the case,” it is the party’s “duty to frame the issues,” ensuring the “instructions accurately reflect the issues tended by the evidence adduced at trial.”[67]

But preparing a set of proposed jury instructions is just the beginning. Near the conclusion of the trial, the court – armed with both parties’ proposed instructions and any written objections – will prepare its own set of draft instructions. Judges all have their own systems for doing so, often involving informal, off-the-record conferences and the exchange of preliminary drafts and redlines. But regardless of the system, by rule, the court must give the parties an opportunity to make any final objections to the court’s proposed instructions on the record before the instructions are delivered.[68] This is often referred to as the “instructions conference” or “charge conference,” and it is at that time that parties must state any remaining objections to the court’s instructions on the record to preserve them for appeal.[69]

Objections to jury instructions generally require a greater specificity, particularly in the federal system, where the objecting party must state distinctly the matter objected to and the grounds for the objection.[70] Under this standard, counsel must make an objecting party’s position “abundantly clear.”[71] While state courts in Oklahoma appear to take a less rigid approach,[72] existing precedent on the level of specificity required is limited. As a matter of best practice, counsel should aim to comply with the federal standard, regardless of the forum.

A word of caution regarding off-the-record conferences and communications: Many judges like to work through objections to jury instructions, at least initially, on an informal basis through off-the-record conferences and communications. As the 10th Circuit has noted, this practice can often lead to the creation of an inadequate record.[73] While there is nothing wrong with trying to resolve objections informally and by agreement, when that process is done, counsel must ask for the opportunity to state any remaining objections on the record.[74] The process will likely involve a fair deal of repetition. When the time comes, counsel must make any on-the-record objections with the requisite specificity, doing so as though any prior off-the-record conferences or communications had never occurred – because, from an appellate perspective, they didn’t.[75]

A final note regarding jury instructions: The Oklahoma Uniform Jury Instructions (OUJIs) are not infallible. While state law ordinarily requires courts to use any applicable OUJIs when instructing the jury, crucially, that mandate does not apply if the court determines that an instruction fails to “accurately state the law.”[76] In that case, “it is the trial judge’s duty to deviate from the OUJIs.”[77] Counsel should not hesitate about objecting to OUJI instructions when an instruction “fails to accurately state the applicable law, is erroneous, or is improper.”[78] The same is true at the federal level with circuit pattern jury instructions. Such instructions “are merely intended to serve as a guide to assist judges and counsel” – “they are not binding”[79] and will often “lag behind [the circuit’s] decisions.”[80]

CONCLUSION

If we were to offer a final word of advice, it would be this: Just do your best. Preserving the record for appeal is hard work. You will likely make mistakes – we all do. But do not let those mistakes distract or discourage you. Stay focused and keep objecting.

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ABOUT THE AUTHORS

Justin A. Lollman is a shareholder at GableGotwals, where his practice focuses on appeals, complex commercial litigation and white-collar criminal defense. Before entering private practice, Mr. Lollman clerked on the U.S. Court of Appeals for the 7th Circuit and the U.S. District Court for the Northern District of Oklahoma.

 

 

 

 

Andrew J. Hofland is a shareholder at GableGotwals, where his practice focuses on white-collar defense and commercial litigation. He previously served as an assistant U.S. attorney for the Northern District of Oklahoma and a Navy judge advocate.

 

 

 

 

 

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ENDNOTES

[1] SEC v. Mayhew, 121 F.3d 44, 54 (2d Cir. 1997); see also Myers v. State, 1981 OK CR 12, ¶3, 623 P.2d 1035, 1036 (“The policy considerations underlying this rule [to contemporaneously object] are to draw the alleged error to the attention of the trial court and to provide that court an opportunity to correct any error at the time of trial.”).

[2] United States v. Mitchell, 783 F.2d 971, 975 (10th Cir. 1986); Matter of C.A.R., 1994 OK CIV APP 124, ¶20, 882 P.2d 582, 585 (“The purpose of timely objection is to call attention to the alleged error at a time when the trial court could reasonably be expected to correct it”).

[3] Brown v. State, 1965 OK CR 84, ¶17, 404 P.2d 78, 81; McAlester Urb. Renewal Auth. v. Lorince, 1973 OK 148, ¶6, 519 P.2d 1346, 1348; United States v. Tomlinson, 764 F.3d 535, 537 (6th Cir. 2014).

[4] Russell v. Davison, 1939 OK 1, ¶21, 89 P.2d 352, 357; Woods v. State, 1988 OK CR 222, ¶10, 762 P.2d 987, 989; 21 Wright and Miller, Federal Practice & Procedure §5037.1 (2d ed. 2024).

[5] Phillips v. Nat’l Oilwell Varco, LP, 2024 OK CIV APP 4, ¶41, 544 P.3d 980, 992; Drouillard v. Jensen Const. Co. of Oklahoma, 1979 OK 126, ¶5, 601 P.2d 92, 93 (holding that “[i]f a defendant presents evidence after his demurrer to the plaintiff's evidence is overruled, that particular demurrer is waived” and the defendant must move for a directed verdict at the close of all of the evidence to preserve the challenge for review). As commentators have noted, “Case law is sparse and indirect on whether a demurrer to the evidence [at the close of the plaintiff’s case] is required to preserve sufficiency of the evidence.” 5 Harvey D. Ellis Jr. and Clyde A. Muchmore, Oklahoma Appellate Practice §15:6 (2024 ed.). Rather than risk the issue, counsel should raise any sufficiency challenge both at the close of the plaintiff’s case (a demurrer) and, if a defense case is presented, at the close of all the evidence (a directed verdict).

[6] Omalza v. State, 1995 OK CR 80, ¶97, 911 P.2d 286, 310; Young v. State, 2000 OK CR 17, ¶34, 12 P.3d 20, 35.

[7] Fed. R. Civ. P. 50(a)(2), (b); Brothers v. Johnson, 105 F.4th 1279, 1283 (10th Cir. 2024).

[8] Fed. R. Crim. P. 29(a); United States v. Freeman, 70 F.4th 1265, 1272 (10th Cir. 2023) (defendant must “renew the motion ... after introducing evidence in his own defense”).

[9] Fed. R. Crim. P. 29(c)(1); United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008).

[10] Fed. R. Civ. P. 51(c)(2); Baker v. Shaw, 1938 OK 628, ¶5, 184 Okla. 194, 86 P.2d 319, 321; Ellis and Muchmore, supra, note 5, §15:26.

[11] Quarles v. Panchal, 2011 OK 13, ¶7, 250 P.3d 320, 322; Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1456 (10th Cir. 1990).

[12] Rodebush By & Through Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241, 1245 n.2; Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1319 (10th Cir. 1998).

[13] Levy v. Tharrington, 1936 OK 711, ¶3, 62 P.2d 641, 642; Booth Tank Co. v. Symes, 1964 OK 160, ¶14, 394 P.2d 493, 497.

[14] 12 O.S. §630; 22 O.S. §86; Fed. R. Civ. P. 46; Fed. R. Crim. P. 51(b); see also United States v. Paul, 542 F.3d 596, 599 (7th Cir. 2008).

[15] See Wright and Miller, supra, note 4 §5037.4; 1 McCormick on Evidence §52 (8th ed. 2022).

[16] See id.

[17] McCormick, supra, note 15, §52.

[18] St. Louis & S. F. R. Co. v. Davis, 1913 OK 295, ¶2, 132 P. 337, 339; Relf v. State, 1929 OK CR 345, 280 P. 851, 853; see also Wright and Miller, supra, note 4 §5037.7 (describing the waiver rule as “nonsense”).

[19] United States v. Mitchell, 783 F.2d at 975; United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).

[20] United States v. Winder, 557 F.3d 1129, 1136 (10th Cir. 2009).

[21] See McCormick, supra, note 15, §52 (providing examples of general objections).

[22] One clear exception to this advice is with sufficiency of the evidence challenges, where specificity is either unnecessary to preserve the issue for appeal (as in criminal cases), Speegle v. State, 1976 OK CR 299, ¶31, 556 P.2d 1045, 1049; United States v. Murphy, 100 F.4th 1184, 1194 (10th Cir. 2024), or the requirement is less rigorously enforced (as in civil cases). See Oklahoma City v. Richardson, 1937 OK 195, ¶4, 69 P.2d 334, 335 (“[I]f the trial court is content to rule upon a general demurrer to the evidence or motion for directed verdict, without requiring the reasons to be stated, and the other party is likewise content, this court is bound to pass upon any issue in the case which reasonably may be said to be within the scope of the demurrer or motion.” (citation omitted)); Dillon v. Mountain Coal Co., 569 F.3d 1215, 1221-22 (10th Cir. 2009) (“In evaluating the sufficiency of a Rule 50 motion, we liberally construe Rule 50's requirements. Technical precision is unnecessary.” (citation omitted)); Myklatun v. Flotek Indus., Inc., 734 F.3d 1230, 1234 (10th Cir. 2013) (“When the party moving for judgment as a matter of law fails to articulate its motion with sufficient specificity, the non-moving party must object in order to preserve the issue for appeal.” (alteration omitted)).

[23] See McKenzie v. Benton, 388 F.3d 1342, 1350 (10th Cir. 2004); Graves v. Graves, 1970 OK 177, ¶10, 475 P.2d 171, 176; Armstrong v. State, 1991 OK CR 34, ¶23, 811 P.2d 593, 599.

[24] Hall v. United States, 378 F.2d 349, 350 (10th Cir. 1967).

[25] See Wright and Miller, supra, note 4, §5036.2 (“If the party has filed a motion in limine or has made a more specific objection to a prior attempt to elicit similar evidence, less specific later objections will more likely suffice.”).

[26] Slater v. Mefford, 188 Okla. 525, 111 P.2d 159, 160 (1940); see also Nelson v. Pollay, 1996 OK 142, ¶13, 916 P.2d 1369, 1376 (“An appellate court will not make first-instance determinations of law or fact.”).

[27] Fixico v. State, 1987 OK CR 64, 735 P.2d 580, 583 (citing Midwestern Engine & Equip. Co. v. Childers, 1957 OK 274, ¶4, 323 P.2d 738, 740-41).

[28] United States v. McConnell, 749 F.2d 1441, 1448-49 (10th Cir. 1984).

[29] Id. at 1448.

[30] See United States v. Banks, 687 F.2d 967, 971-72 (7th Cir. 1982); United States v. Sternback, 402 F.2d 353, 355-56 (7th Cir. 1968).

[31] See McConnell, 749 F.2d at 1448-49; Wright and Miller, supra, note 4, §5034.3 (“Presumably the lawyer need not push the judge to the edge of contempt; if the judge refuses to rule despite a request to do so, the refusal to rule should be treated as an error itself for purposes of review.”).

[32] Duke v. Duke, 2020 OK 6, ¶34, 457 P.3d 1073, 1085 (“A trial court’s record constitutes the only means for communication of its proceedings to an appellate court.”).

[33] In re Baby Girl L., 2002 OK 9, ¶50, 51 P.3d 544, 561; Hamid v. Sew Original, 1982 OK 46, ¶6, 645 P.2d 496, 497; Matter of Adoption of Baby Boy W., 1992 OK 58, ¶14, 831 P.2d 643, 646 (appellate court affirmed judgment since, without an entire trial transcript and “nothing in the record to show that the trial court ruled incorrectly,” “it must be assumed that the facts underlying the trial court’s judgment were proven.”).

[34] United States v. Bornfield, 184 F.3d 1144, 1146 (10th Cir. 1999).

[35] See id.; Okla. Sup. Ct. R. 1.30; Fed. R. App. P. 10(c).

[36] Eizember v. State, 2007 OK CR 29, ¶36, 164 P.3d 208, 220; see Cox v. Sarkeys, 1956 OK 294, ¶19, 304 P.2d 979, 984-85.

[37] Ross v. Oklahoma, 487 U.S. 81, 89 (1988) (discussing requirement under Oklahoma law). While this step is not required in federal court, see United States v. Martinez-Salazar, 528 U.S. 304, 314-15 (2000), it remains a best practice regardless of forum. Failure to excuse a challenged-for-cause juror may result in a determination on appeal that a party’s concerns of prejudice were not genuine. See Turnbull v. Missouri Pac. R. Co., 1991 WL 544257, at *3 (W.D. Okla. Dec. 10, 1991).

[38] Matthews v. State, 2002 OK CR 16, ¶16, 45 P.3d 907, 915; Cox, 304 P.2d at 985.

[39] Sanchez v. State, 2009 OK CR 31, ¶37, 223 P.3d 980, 995; Cox, 304 P.2d at 985; City of Guthrie v. Snyder, 1914 OK 412, 143 P. 8, 9.

[40] Eizember, 164 P.3d at 220; Snyder, 143 P. at 9.

[41] Clark v. Turner, 2004 OK CIV APP 69, ¶23, 99 P.3d 736, 741.

[42] Id.

[43] United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir. 1993).

[44] Clark, 99 P.3d at 742-43.

[45] Mejia-Alarcon, 995 F.2d at 988.

[46] Fed. R. Evid. 103; 12 O.S. §2104.

[47] Yeager v. Farmer, 1976 OK 44, ¶¶21-23, 549 P.2d 345, 348.

[48] United States v. Adams, 271 F.3d 1236, 1241 (10th Cir. 2001) (citing Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1406-1407 (10th Cir. 1991)).

[49] Id. (citations omitted).

[50] Id. (citations omitted).

[51] Id. at 1242 (citations omitted).

[52] Id. at 1241-42.

[53] Id.

[54] Id. at 1241.

[55] 75 Am. Jur. 2d Trial §348; Wright and Miller, supra note 4, §5040.6; see also Gray v. Lucas, 677 F.2d 1086, 1100 (5th Cir. 1982).

[56] Carver v. Knutson Elevators, Inc., 1955 OK 183, ¶15, 285 P.2d 391, 395; Midland Sav. & Loan Co. v. Cheves, 1916 OK 629, ¶4, 158 P. 362, 363 (“If a party opens the door for the admission of incompetent evidence, he is in no plight to complain that his adversary followed through the door thus opened.”).

[57] See id. ¶¶4-5.

[58] Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251, 1257-58 (10th Cir. 2016); see also Reinard v. Crown Equip. Corp., 983 F.3d 1064, 1069 (8th Cir. 2020) (“[P]reemptively introducing evidence constitutes a waiver of any objection to the evidence's admission even if the opposing party referenced the evidence in its opening statement.”).

[59] Mitchell v. Koch, 1943 OK 402, ¶¶14-15, 143 P.2d 811, 812-13.

[60] EEOC v. JetStream Ground Servs., Inc., 878 F.3d 960, 964 (10th Cir. 2017); United States v. Chavez, 229 F.3d 946, 952 (10th Cir. 2000).

[61] See Mitchell v. Koch, 143 P.2d at 813.

[62] Lerma v. Wal-Mart Stores, Inc., 2006 OK 84, ¶23, 148 P.3d 880, 886.

[63] United States v. Baez, 703 F.2d 453, 455 (10th Cir. 1983) (reviewing improper judicial comments not objected to for plain error); Preventive Energy Sols., LLC v. nCap Ventures 5, LLC, 2023 WL 7148434, at *11-12 (10th Cir. Oct. 31, 2023) (same); McCracken v. State, 1994 OK CR 68, ¶13, 887 P.2d 323, 328 (same).

[64] United States v. Currie, 911 F.3d 1047, 1056-57 (10th Cir. 2018); United States v. Taylor, 514 F.3d 1092, 1096 (10th Cir. 2008); Smith v. State, 1979 OK CR 83, ¶6, 599 P.2d 413, 414-15.

[65] See Currie, 911 F.3d at 1056-57; Taylor, 514 F.3d at 1096; Smith v. State, 148 P.3d at 885-86.

[66] Lerma, 148 P.3d at 886.

[67] Farris v. Masquelier, 2022 OK 91, ¶14, 524 P.3d 942, 948 (quoting Sellars v. McCullough, 1989 OK 155, ¶9, 784 P.2d 1060, 1062-63.).

[68] Fed. R. Civ. P. 51(b)(2); 12 O.S. §578; Bornfield, 184 F.3d at 1146; Wooldridge v. State, 1990 OK CR 77, ¶9, 801 P.2d 729, 732.

[69] See 12 O.S. §578; Fed. R. Civ. P. 51(c)(2), (d)(2); see Abuan v. Level 3 Commc’ns, 353 F.3d 1158, 1172 (10th Cir. 2003); But see Cantrell v. Henthorn, 1981 OK 15, ¶4, 624 P.2d 1056, 1057 (holding plaintiff adequately preserved objection even though his “counsel did not specifically dictate his objection into the record,” as 12 O.S. §578 requires, where “the spirit of the law was complied with”).

[70] Fed. R. Civ. P. 51(c)(1); see Fed. R. Crim. P. 30(d).

[71] Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1514 (10th Cir. 1984).

[72] See e.g., Cantrell, 624 P.2d at 1057.

[73] See Bornfield, 184 F.3d at 1145-46 (collecting cases).

[74] Id. at 1146.

[75] Id.

[76] 12 O.S. §577.2.

[77] In re T.T.S., 2015 OK 36, ¶18, 373 P.3d 1022, 1029.

[78] Id.

[79] United States v. Freeman, 70 F.4th 1265, 1280 n.13 (10th Cir. 2023).

[80] United States v. Harper, 118 F.4th 1288, 1301 (10th Cir. 2024).